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Май 2015




Yuri Fogelson No one Likes Greedy Insurers, whatever is Said in Laws
Case comment on the judgment of RF SC № 305-ES14-3075, 30 March 2015 and № 309-ES14-4126, 21 January 2015
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Sergei Ovsyannikov A Case of Piercing the Corporate Veil of a Taxpayer
Case comment on the judgment of RF SC № 81-KG14-19, 27 January 2015
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Kirill Mityagin Should the Author’s Fee be Paid for the Use of Geodetic Coordinates?
Case comment on the judgment of RF SC № 306-ES14-5432, 8 April 2015
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Yuri Tolstoy Problems of the Development of Civil Legislation and Their Solutions
In 2008, the Russian President by his Decree commenced works on imporoving civil legislation. Unfortunately, the pace of these works has gradually slowed down and their quality leaves a lot to be desired. The article attempts to investigate why this has happened and outline how the situation could be improved. The author of the article has been involved in the works on codification of civil legislation in 1960s and 1990s, as well as in the current codification works. It goes without saying that the author does not regard his ideas as indisputable.
Keywords: reform of civil legislation, corporate law, property law
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Konstantin Sklovskiy Transaction and Possession
Possession is not a right but a fact. As a fact, it should be considered as an action rather that a state. The idea that possession is a certain right is largerly known and originates from the works of Savigny who considered the act of transfer of possession as a transaction, in particular, because the transfer of possession may be performed by symbols and jests. However, this view is questionable. Transfer of possession is the act by which a thing goes under full control of the recipient, and the will of the former possessor is eliminated. The physical possession of the thing (or the ability of the recipient to establish such possession at his will) has a material utilitarian value which is the essence of the act of transfer. On the other side, a transfer is an act that fundamentally does not have a material utilitarian value and its essence is to establish an ideal (legal or moral) connections between people. Some argue that possession is a right because it could be transferred through inheritance. However, it is a mistake to think that only rights and obligations could be inherited and, therefore, this argument does not work.
Keywords: property law, possession, transfer of possession, transaction, juridical fact
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Vsevolod Baibak Loss of Chance as a Type of Damages
The article deals with loss of a chance as a special type of damages which is unknown to Russian law but quite well developed abroad. The main feature of this type of loss is special procedure of calculation – in proportion to the chances to gain profit. The article contains comparative analysis of main foreign and international instruments allowing compensation for loss of a chance. Author analyses main conditions, which are necessary for recovery of loss of a chance. As regards Russian law along with recent significant amendments to the rules of the Civil Code on contract damages, it is submitted that compensation for loss of a chance is possible in principle.
Keywords: damages, loss of chance


Andrey Panov Is There a Need for Revision of the Arbitration Rules of the ICAC at the CCI of Russia and If Yes What Changes Are Needed?
The article discusses whether the time has come to revise the arbitration rules of the ICAC at the CCI of Russia and what changes would be desirable. The author comes to the conclusion that the ICAC Rules should be changed to allow the institution to keep up with the growing international competition. The author further advocates extensive public consultations, involving all interested parties, particularly the in-house lawyers to determine what changes should be made to the existing Rules. The article further sets out a few areas where the changes would be desirable. In particular, to lift the quality of the proceedings in ICAC to the international level it is suggested that the arbitral tribunal should be required to communicate directly with the parties and to establish the framework as well as the procedural timetable early in the case. Since the sophistication of the existing procedures may not be always welcome by the users with smaller claims, it is suggested that the rules on fasttrack arbitration should be introduced for such cases. The article further suggests certain changes to the procedure of appointment of the tribunal. In particular, it is suggested that the mandatory nomination of the substitute arbitrator and the appointment of the secretary to the tribunal should be abandoned. Also, the article suggests that the default rule for appointment of the presiding arbitration should be by agreement of the parties, rather than by the arbitral institution. This should ensure greater involvement of experienced foreign arbitrators in the ICAC proceedings and would allow the parties to select the tribunal which is most suitable for their case. Finally, the revision of the arbitration fees schedule is suggested.
Keywords: ICAC, international commercial arbitration, arbitral proceedings, fast-track procedure, arbitral tribunal
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Alexander Trunin Interpretation of Contract in the EU Member States
This article describes main approaches to the interpretation of contract in the European Union countries based on their legislation, scholarly sources and, in some cases, court practice. The article focuses on various methods of the interpretation of contract and considers the role of subjective and objective interpretation methods. Also, the author considers certain rules of the interpretation that are used in different countries. The analysis shows that the EU countries have different approaches to the interpretation of contract focused both on subjective interpretation (intention of the parties) and objective interpretation (understanding of the reasonable person). Though interpretation according to the common intention of the parties prevails, there is a clear tendency to strike a balance between subjective and objective interpretation. This balance is reached, in particular, by applying the principles of law (good faith, reasonableness, etc.).
Keywords: interpretation of contract, European Union, methods of interpretation, subjective interpretation, objective interpretation
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